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2023 DIGILAW 305 (HP)

Palak v. Pritam Singh

2023-05-25

JYOTSNA REWAL DUA

body2023
JUDGMENT : Jyotsna Rewal Dua, J. CMP No.3229 of 2023 In view of averments made in the application and there being no objections from the appearing respondents, name of respondent No.3 is ordered to be deleted from the array of parties. The application to stand disposed of. CMP(M) No. 688 of 2017 Heard. Taking into consideration the pleadings and in the interest of justice, delay as occurred in filing the appeal is condoned. The application to stand disposed of. FAO No.103 of 2023 With the consent of learned counsel for the parties, the matter is heard at this stage. 2. Claim petition instituted by the appellant under Section 166 of the Motor Vehicles Act, seeking compensation in the sum of Rs. 50,000/-, was dismissed by learned Motor Accident Claims Tribunal (the Tribunal in short) on 03.09.2016. In the circumstances, the claimant has instituted instant appeal. The parties hereinafter are referred to according to their status before the learned Tribunal. 3. The case 3(i) The case of the claimant was that on 06.10.2011, she alongwith her family members, including her mother, was travelling in the vehicle bearing registration No.DL8-CB-2673. The vehicle was registered in the name of respondent No.2. It was being driven by respondent No.1. At around 11:55 a.m., when the vehicle reached near a bridge, respondent No.1 lost control of the vehicle, as a result thereof, it rolled down in a rivulet. Consequently, the claimant and her family members sustained multiple injuries. The claimant remained admitted in Regional Hospital Nahan w.e.f. 06.10.2011 to 12.10.2011. FIR was also got registered regarding the accident. 3(ii) Respondent No.1 in his reply denied being driver of the ill-fated vehicle. His stand was that he was also travelling in the vehicle and at the relevant time, the vehicle was being driven by one Kewal Ram Sharma S/o Sh. Mangat Ram. Respondent No.1 submitted that the claimant had filed the claim petition by suppressing true facts and implicated him with malafide intention. Respondent No.1 admitted that FIR regarding the accident was registered, however, his plea was that the FIR was false. That he was only travelling in the vehicle alongwith the claimant and her family members. That he was not driving the vehicle in question. 3(iii) Respondent No.2 took the plea that she owned the vehicle at one point of time, but had transferred its ownership alongwith possession to Sh. That he was only travelling in the vehicle alongwith the claimant and her family members. That he was not driving the vehicle in question. 3(iii) Respondent No.2 took the plea that she owned the vehicle at one point of time, but had transferred its ownership alongwith possession to Sh. Vijay Dabas (respondent No.3) on 03.01.2007. The stand of respondent No.2, thus, was that compensation, if any, payable to the claimant was the liability of respondent No.3, being owner of the vehicle. 3(iv) Original respondent No.3 (now deleted) took the stand that he had also sold the vehicle on 20.07.2008 to one Mani Ram S/o Om Prakash and that possession of the vehicle was also delivered to the transferee. 3(v) Parties led evidence in support of their pleadings. The claimant produced Medical Officer (PW-4), who stated that claimant had sustained simple injuries in the accident. Official from Regional Hospital Nahan appeared as PW-2 and stated that the claimant remained admitted in the said hospital from 06.10.2011 to 12.10.2011. Respondent No.1 as RW-2 deposed that FIR regarding the accident was though registered, but after conclusion of the trial, he had been acquitted vide judgment dated 26.04.2014 (Ex. R-2). Respondent No.1 relied upon the observations of the Court made in Ex. P-2 that on the relevant date, the vehicle in question could not be held to be driven by him. He emphatically stated that he did not drive the offending vehicle on the date and time in question. 3(vi)(a) About ownership of the vehicle, learned Tribunal held that the vehicle in question was originally owned by respondent No.2. While deposing as RW-1, respondent No.2 tendered in evidence photocopy of form No.29 (Ex.RW-1/D) executed by her and photocopy of form No.30 (Ex.RW-1/E) executed by respondents No.2 and 3 concerning the vehicle. These documents proved that respondent No.2 had sold the vehicle to respondent No.3 and the latter had acknowledged the sale. Learned Tribunal held that respondent No.2 had taken all necessary steps in law for selling the offending vehicle to respondent No.3, therefore, the onus lay heavily upon respondent No.3 to show as to why he had not got formal entry in his name recorded in the relevant register of the registering authority. Respondent No.3 neither stepped into the witness-box himself nor he adduced any evidence. Respondent No.3 neither stepped into the witness-box himself nor he adduced any evidence. Respondent No.3’s contention of having further sold the vehicle to Mani Ram, S/o of Om Prakash was not proved on record. In the given facts, learned Tribunal held respondent No.3 to be the owner of the offending vehicle. 3(vi)(b) About Driver of the vehicle: - Learned Tribunal did not place reliance upon the judgment of acquittal dated 26.04.2014 (Ex. R-2) as the findings recorded by the Court in criminal proceedings would not be binding upon the Civil Court including the Motor Accident Claims Tribunal. Learned Tribunal, however, concluded that the claimant could not prove the identity of the driver of the vehicle. The claimant could not prove that the vehicle was being driven by respondent No.1 as alleged by her. The claim petition was accordingly dismissed. In the above backdrop, the claimant has preferred instant appeal. 4. Heard learned counsel for the parties and considered relevant record. Relevant record of the case was made available by the learned counsel for the parties during hearing of the case. In the given facts and circumstances of the case and the evidence as discussed by the learned Tribunal, I am inclined to accept the ultimate conclusion of the learned Tribunal in dismissing the claim petition. This is for the following reasons: - 4(i) The claimant had put forth a specific case that the accident had occurred on account of negligent driving of the vehicle by respondent No.1. 4(ii) Respondent No.1 had denied driving the offending vehicle at the relevant time. It was his specific stance that he was just a fellow traveller in the vehicle. 4(iii) To prove that vehicle was being driven by respondent No1, the claimant’s only plank was the FIR (Ex.PW-1/A) registered at Police Station Renuka Ji. However, this FIR was registered on the basis of observations made at the spot by SI Liaq Ram. Furthermore, the FIR did not disclose the identity of the driver of the vehicle. 4(iv) On the basis of the investigation conducted by the police, charges in the criminal case were framed against respondent No.1. Learned Trial Court acquitted respondent No.1 vide judgment dated 26.04.2014. Finding recorded by the learned Trial Court in criminal case was not binding upon the Tribunal, however, instant case stood on different footing. 4(iv) On the basis of the investigation conducted by the police, charges in the criminal case were framed against respondent No.1. Learned Trial Court acquitted respondent No.1 vide judgment dated 26.04.2014. Finding recorded by the learned Trial Court in criminal case was not binding upon the Tribunal, however, instant case stood on different footing. During trial in the aforesaid criminal case, the claimant had herself stepped in the witness-box. It is not in dispute that while appearing in the witness-box in the aforesaid case, she had stated that the offending vehicle was being driven by one Sh. Kewal Ram Sharma. Not only the claimant, her mother and co-passenger, had also appeared in the witness- box in the aforesaid trial. It is not in dispute that claimant’s mother also stated that the vehicle was being driven by one Kewal Ram Sharma. Thus, the claimant as well as her mother, who were both travelling in the offending vehicle at the relevant time were unison in their stand in the criminal trial about the offending vehicle being driven by one Kewal Ram Sharma. Their statements even though recorded in the criminal case, cannot be ignored in the instant claim case when but for the pleaded version of the claimant about respondent No.1 being driver of the vehicle, no piece of evidence establishes respondent No.1 to be the driver of the vehicle and respondent No.1 has himself very emphatically put forth that the vehicle was driven by Kewal Ram Sharma. Learned Tribunal has also referred to the statement of the claimant recorded in the claim petition, wherein she could not give satisfactory answer as to why she had named Kewal Ram Sharma as driver of the offending vehicle in the criminal case or as to why she had named respondent No.1 as driver of the same vehicle in the claim petition. Here it would be profitable to refer to a decision dated 10.05.2019, rendered by Punjab & Haryana High Court in FAO No.4820-2011 (Nirmala Devi and others Versus Narinder Kumar and others), wherein it was held as under:- “25. Here it would be profitable to refer to a decision dated 10.05.2019, rendered by Punjab & Haryana High Court in FAO No.4820-2011 (Nirmala Devi and others Versus Narinder Kumar and others), wherein it was held as under:- “25. No doubt acquittal in criminal case is not by itself sufficient to warrant rejection of motor accident claim for the simple reason that in criminal cases the guilt of accused is required to be proved beyond reasonable doubt and in motor accident claim cases negligence on the part of the driver of the offending vehicle is required to be proved on preponderance of probabilities. This difference in standard of proof justifies ignoring the judgment of acquittal passed by the Court of Judicial Magistrate on the ground of guilt of accused not having been proved beyond reasonable doubt. However, in cases where the accused is completely exonerated of having caused the accident on the ground of the complainant and eye witnesses turning hostile and deposing that the accident did not take place with the vehicle in question or that the driver charge-sheeted was not the person who was driving the vehicle at the time of the accident, it will be wholly improper to ignore judgment of acquittal as the same would furnish substantive evidence of collusion between the parties and making of fraudulent claims and false statements by them so as to even warrant review in appropriate cases even after the award has attained finality as observed by Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Rajendra Singh and others 2000 (2) PLR (Supreme Court) 787. 26. Ltd. Vs. Rajendra Singh and others 2000 (2) PLR (Supreme Court) 787. 26. In the present case admission of the accident by respondents No.1 and 2 coupled with their failure to produce any evidence in their defence and deposition of PW-3 Dharam Pal before the Tribunal on 20/26.10.2009 as to causing of accident by rash and negligent driving of the car in question by respondent No.1 after his acquittal in the criminal case on 15.05.2009 coupled with his non- appearance before the Criminal Court and consequent acquittal of respondent No.1 in criminal case on the ground of there being no incriminatory evidence against him and withdrawal by the claimants of the petition filed at Ambala and filing of the petition at Ropar after more than five years lead to the only inevitable inference of collusion between the claimants and respondents No.1 and 2 and warrant rejection of their claim for compensation. 27. In these facts and circumstances of the case the claimants must be held to have failed to prove that Om Parkash died due to injuries suffered in the accident caused by rash and negligent driving of the car in question by respondent No.1. The findings of the Tribunal on issue No.1 are based on sound understanding of the facts and proper appreciation of the evidence produced on record and not being contrary to the facts, evidence on record and law on the subject, cannot be said to be perverse and do not call for any interference. Therefore, the impugned award is not liable to be set aside and the appeal, being devoid of any merit, is liable to be dismissed.” 4(v) It has been the stand of respondent No.1 throughout that the vehicle was being driven by Kewal Ram Sharma. Learned Tribunal has correctly observed that victim of the accident can claim compensation from the owner of the offending vehicle even when the claimant fails to prove the identity of the driver. But the fact would remain that the employment of the driver under the owner will have to be shown so that owner can be held vicariously liable for the tortuous act of the driver. In the instant petition, irrespective of ownership of the vehicle be it of respondent No.2 or 3 or anyone else, identity of the driver was not established by the claimant. According to the claimant, the vehicle was being driven by respondent No.1. In the instant petition, irrespective of ownership of the vehicle be it of respondent No.2 or 3 or anyone else, identity of the driver was not established by the claimant. According to the claimant, the vehicle was being driven by respondent No.1. This was denied by respondent No.1. According to respondent No.1, he was just a fellow traveller in the offending vehicle being driven by Kewal Ram Sharma. There was no positive evidence to establish that respondent No.1 was driving the vehicle at the relevant time. Respondent No.1 had denied driving the vehicle at that time. Statements of claimant and her mother (a fellow passenger in the car) recorded during the criminal case were very categorical that vehicle in question was being driven by Kewal Ram Sharma. The available evidence leads to unescapable conclusion that claimant had suppressed the truth from the Tribunal about the driver of the offending vehicle. She had presented false facts about driver of the vehicle. Under the circumstances, owner of the vehicle be it respondent No.2 or respondent No.3, could not be held vicariously liable. The link between the driver and owner of the vehicle was also not established. The identity of the driver was not established. 5. For the foregoing reasons, I do not find any reason for interfering with the impugned order passed by learned Motor Accident Claims Tribunal, dismissing the claim petition. Consequently, the present appeal is dismissed, so also the pending miscellaneous application(s), if any.